1

QUESTIONS OF DISCRIMINATION: Singling out bar applicants with mental illness

Emily Cooper, Disability Rights Washington

NARPA ConferenceSeptember 5, 2014, at 1PM

2

What is DRW?

•State designated “P&A” System* •Private non-profit •Federal mandate and access•Serve people with all disabilities•Directed by people with disabilities•Sets annual priorities based on public feedback

* All DRW Services are Free

3

DRW’s Services

•Technical Assistance•Public policy•Systemic legal services for

disability discrimination or violation of rights•Education and training –

like this one on bar application developments

4

A Character and Fitness Timeline

1970 ABA Model Code of PR “mental or emotional instability”1990 Americans with Disabilities Act1994 ABA C&F Resolution – consider privacy and tailor questions 1995 Clark v. Va. Bd. of Bar Exam’rs, 31 ask broad questions2009 Study shows general trend of tailoring 2013 4 don’t ask any question (AZ, MA, IL, PA) & 3 don’t single out MI2014 DOJ writes two guidance letters2014 TN stops asking about mental health status2014 DRW releases Questions of Discrimination2014 Bazelon leads DOJ Settlement Agreement in LA

5

A Character and Fitness Timeline

1970 ABA Model Code of PR “mental or emotional instability”1990 Americans with Disabilities Act1994 ABA C&F Resolution – consider privacy and tailor questions 1995 Clark v. Va. Bd. of Bar Exam’rs, 31 ask broad questions2009 Study shows general trend of tailoring 2013 4 don’t ask any question (AZ, MA, IL, PA) & 3 don’t single out MI2014 DOJ writes two guidance letters2014 TN stops asking about mental health status2014 DRW releases Questions of Discrimination2014 Bazelon leads DOJ Settlement Agreement in LA

6

Sanism and Practicing Law

• On “Sanism”: people with MI are:• dangerous, • incompetent, • easily identifiable, • Segregated

• Stigma Study: 59% “very comfortable” with wheel chair users, 47% with blindness, and only 19% with mental illness• Bar inquiries to “protect the public”

7

Dispelling the Myth

•More likely to be victims of crime than commit crime• Recidivism in WA (28%, 13%, and .6%)• Examples:• Lincoln – depression• Churchill - depression• Flaherty - bipolar•Me - anxiety

8

2012 WSBA Membership Study• SAMSHA: 20% of Washingtonians have a mental illness• Only 1.3 % identified in the study; highest barrier

intensity •WSBA Conclusion:

“These results are troubling and further targeted study will be needed to ascertain fully the sources and causes of barriers to the legal profession for this group and to identify steps to reduce the incidence.”

9

Character and Fitness in WA1. Question 242. Question 253. Forms 7 and 84. APR 225. APR 24.2

www.courts.wa.gov

10

1. Question 24:

During the past 5 years have you experienced, been diagnosed with, or undergone treatment for any condition or impairment (including, but not limited to, substance abuse or dependency, alcohol or dependency, or a mental condition, psychotic, mental, emotional, or nervous disorder or condition) which affects, or if untreated could affect your ability to practice law in a competent and professional manner?

11

2. Question 25:

Within the past two years, have you engaged in or exhibited any conduct or behavior that could call into question your fitness to practice law as defined in APR 22(a)?

12

3. APR 22(a)

Fitness - defined. Fitness is the absence of any current mental impairment or current drug or alcohol dependency or abuse which, if extant, would substantially impair the ability of the Applicant, Bar Association member, or Petitioner to practice law.

13

3. APR 22(a)

Fitness - defined. Fitness is the absence of any current mental impairment or current drug or alcohol dependency or abuse which, if extant, would substantially impair the ability of the Applicant, Bar Association member, or Petitioner to practice law.

14

4. APR 24.2(d) Factors

• “Whether there is a current mental impairment.”• “The nature, extent and duration of the

Applicant's mental impairment.”• “The Applicant's candor in the admissions

process and before the Board when describing the impairment.” • “Whether the applicant has received or is

receiving professional mental health treatment appropriate for the impairment…”

15

4. APR 24.2(e) Prohibited Factors and WLAD

•WSBA can’t consider physical or learning disabilities• All disabilities are

protected against discrimination in RCW 49.60.010

16

17

The Results So Far…

• All three law schools joined 89 signatories (you can still sign!)• ACLU wrote own letter• Board of Governor’s Workgroup•Media attention• DOJ settlement in LA

18

The States Who Don’t Single Out……Ask about conduct:

•Criminal charges•Charged with fraud,

conversion, breach of fiduciary duty•Financial •Discipline

19

The Shaming Effect

• Singles applicants out • Increases the closet factor• Reduces who seeks

treatment• Forces applicants to choose

between rights and profession • Sends a message to the

public that mental illness means you aren’t or wouldn’t be a good lawyer

20

Things to Look For

• Data or stories regarding barriers• Partners (WADA, GCDE,

ACLU)• State law• Further DOJ developments•Model APRs and

applications

21

Emily Cooper, Staff Attorney

315 Fifth Avenue South, Suite 850Seattle, WA 98104

V: 206-324-1521 or 800-562-2702TTY: 206-957-0728 or 800-905-0209

www.DisabilityRightsWA.orgemilyc@dr-wa.org

22

Bibliography1. ABA Model Code of Professional Responsibility, “Preliminary

Statement” (1970), http://www.abanet.org/cpr/mrpc/mcpr.pdf.

2. Clark v. Va. Bd. of Bar Exam’rs, 880 F.Supp. 430 (E.D. Va. 1995).

3. The ABA Resolution on Character and Fitness: http://www.americanbar.org/content/dam/aba/directories/policy/1994_am_110.authcheckdam.pdf

4. Theresa Esquerra, Mental Illness Disclosure Requirements on State Bar Moral Character and Fitness Applications: A Qualitative Study (2009) (supported by the 2009 Scattergood Emerging Scholars Fellowship, Active Minds), available at http://www.activeminds.org/storage/documents/theresa_esqueera_mental_illness_disclosure_requirments_-_final_draft.pdf

23

Bibliography (cont.)

5. Jennifer McPherson Hughes, Suffering in Silence: Questions Regarding an Applicant's Mental Health on Bar Applications and Their Effect on Law Students Needing Treatment, Journal on Legal Professions, Vol. 28, page 187 (2003-2004) http://www.law.ua.edu/pubs/jlp/files/issues_files/vol28/v28a15.pdf

6. Michael L. Perlin, On “Sanism,” 46 SMU L. Rev. 373 (1992)7. Jon Bauer, The Character of the Questions and the Fitness of

the Process: Mental Health, Bar Admissions and the Americans with Disabilities Act, 49 UCLA L. Rev. 93, 99 (2001), http://ssrn.com/abstract=293613

24

Bibliography (cont.)

8. Office of Technology Assessment, U.S. Congress, Psychiatric Disabilities, Employment, and the Americans with Disabilities Act 35 (1994).

9. See Joshua Wolf Shenk, Lincoln's Melancholy: How Depression Challenged a President and Fueled His Greatness 110-11 (2005).)

10. Melody Moezzi, “Lawyers of Sound Mind”, NY Times Op Ed, August 5, 2013 available at: http://www.nytimes.com/2013/08/06/opinion/lawyers-of-sound-mind.html?_r=1&